Posted on October 13, 2009 by Erin DeGeorge

Retroactive College Contribution

Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses? 

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”  

 

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

 

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father  should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years.   Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

 

EDITOR'S NOTE:  To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing.  Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits.  In fact, the other parent should be solicited for schools that he/she would suggest being considered.  The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up.  ERIC S. SOLOTOFF

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Posted on June 29, 2009 by Sandra C. Fava

TO EMANCIPATE OR NOT TO EMANCIPATE- THAT IS THE QUESTION

Despite what people often think are iron-clad agreements, foolproof from any misinterpretation, despite best efforts, that may not always be the case.  One area that has been given significant recognition for interpretation by our courts is the area of what constitutes emancipation of a child.

This issue was recently addressed in the unpublished Appellate Court opinion, Zingone v. Zingone, decided June 1, 2009, A-0078-08T1.   Generally, a parent has no obligation to support an emancipated child.  So what constitutes emancipation?

The Supreme Court of New Jersey has held that emancipation can be found when a child marries, joins the military, reaching of an appropriate age, and when a court orders him/her so based upon the child's best interests.  Just because a child turns 18 years old only establishes prima facie, not conclusive proof.  Whether a child is emancipated at 18 years old depends on the facts of the case.

So what does the court look at? The most important inquiry is whether the child has moved beyond his or her parents' sphere of influence and responsibility and has obtained independent status.  To make this determination, one must look at the child's needs, interests and independent resources as well as the family's expectations and the parents' financial ability.

However, if an agreement remains vague as to a triggering emancipation event, as the plaintiff argued in Zingone above, courts will often refer to public policy, which in modern times, encourages a college education, especially where a child shows scholastic aptitude and the parents are able to afford it.

In New Jersey, our highest Court has recognized that generally, financially capable parents should contribute to the higher education of children who are qualified.  Even in cases where a child may take a brief break from college, during which time he or she is working full-time, our courts have held that that child is not emancipated because he or she has not yet moved beyond their parents' sphere of influence.

These cases are often extremely fact specific and require examination of several factors before an individual can determine whether or not their child may be emancipated under the laws of this state such that relief from financial obligations would be successful.

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Posted on June 7, 2009 by Robert A. Epstein

FROM EMANCIPATION TO COLLEGE EXPENSES - WHAT IS A PARENT'S FINANCIAL OBLIGATION?

Recently, I addressed the question as to when a child is emancipated under the eyes of New Jersey law.  As I indicated there, the New Jersey Supreme Court defines emancipation as "the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child."  Newburgh v. Arrigo, 88 N.J. 529 (1982). A related question also addressed by the Court in Newburgh is a parent's obligation to contribute towards a child's postgraduate education expenses.

The Supreme Court in Newburgh set forth a non-exhaustive list of factors for a court to consider in determining a parent's obligation to contribute to such educational expenses.  These factors were subsequently codified by statute at N.J.S.A. 2A:34-23(a) as follows:

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education.

2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education.

3. The amount of the contribution sought by the child for the cost of higher education.

4. The ability of the parent to pay that cost.

5. The relationship of the requested contribution to the kind of school or course of study sought by the child.

6. The financial resources of both parties.

7. The commitment to and aptitude of the child for the requested education.

8. The financial resources of the child, including assets owned individually or held in custodianship or trust.

9. The ability of the child to earn income during the school year or vacation.

10. The availability of financial aid in the form of college grants and loans.

11. The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance.

12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

This issue recently was addressed in the unpublished Appellate Division decision of Subbie v. Subbie.  The facts are relatively straightforward except for the fact that the parties were married and divorced to each other twice.  They had three children, a son and two daughters.  While the divorce complaint was pending in May 2006, the Wife sought interim, pendente lite relief for the children's college expenses.  An Order was subsequently entered by the trial court directing the Husband to reimburse the Wife for $1,800 towards their son's 2005-06 college tuition, and also ordered an equal sharing of said costs through May 2007.  All other relief on this issue sought by the Wife was denied pending a plenary hearing.

Months later, the Wife filed a motion to enforce litigant's rights because the Husband failed to reimburse her the $1,800 previously ordered.  The Husband then cross-moved to emancipate the son, who was in his fifth year of college, and to re-compute his child support obligation.  The Court found the Husband in violation of litigant's rights, granted counsel fees, and reserved the issues of emancipation and recalculation of support to the plenary hearing. 

Following the plenary hearing, the trial court held that had the marriage remained intact, both parents - each of whom had college degrees - would have expected their daughter to attend college and that they each possessed the financial means to assist with college costs and would have contributed accordingly.  The trial court also noted that the Husband should contribute $6,000 based on his financial ability despite his strained relationship with the daughter and that the cost to attend her school of choice - NYU - was beyond both parents' financial means.  The trial court further ordered that the Husband was still required to reimburse the $1,800 (with interest) for the son's college previously ordered, but that he did not have to pay for the son's fifth year of college.

On appeal, the Appellate Division held that the trial court properly considered the factors outlined above in concluding that the Husband:  (1) could contribute towards the daughter's higher education expense; (2) recognized that she would be attending college based on her academic achievements; (3) did not object to her attending college, but rather the actual college selection; and (4) the relationship between them was not always strained and, in actuality, was strained due to the divorce itself and the Husband's failure to attempt to resolve any damage the divorce proceedings caused to his relationship with the children. 

The Appellate Division also concluded that the trial court properly found the son emancipated as of 2006 and that, as a result, the Husband's child support obligation would decrease.  The Husband argued that the son should be declared emancipated sooner because he earned approximately $10,000 in 2005-06 and 2006-07; bought a new car; and incurred large credit card debt.  The trial court, however, noted that the Husband contributed to the son's college expenses even while the son worked before the divorce and that the Wife simply wanted him to continue contributed the same amount that he did before the divorce transpired.  It also correctly concluded that the Husband should pay the $1,800 previously ordered because his failure to pay for same was in "flagrant violation" of that earlier Order.

Questions regarding emancipation and college expenses are especially relevant in light of the current economic environment.  Each situation is highly fact-specific, with an analysis of the above factors, as well as those discussed in my prior entry on emancipation.  Consulting with an experienced matrimonial attorney will assist in your evaluation on these difficult financial issues involving your children future and educational well being.
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Posted on May 13, 2009 by Jennifer Weisberg Millner

Poor Relationship with Parent not enough to Deny College obligation

The issue of relationships between parents and children when determining allocation of college expenses is often a complicated one. I have had many post divorce clients, usually non-custodial clients, discuss their frustration with the lack of involvement that they have had in the selection of college for their sons or daughters but are expected to pay a significant portion thereof. They feel as if the are simply “a wallet.” The recent unreported Appellate Division decision of Miller v. Tafaro brought this to mind.

In Miller, the father had been estranged from his children for many years following the parties’ divorce. When the mother asked the court to enforce the Property Settlement Agreement as to the payment of college expenses, the father said that he should not have an obligation to pay as he did not have a relationship with the children. The Court noted that as this was but one factor for consideration by the court, and, given that the lack of relationship over the years with the children was a result of the father’s actions, the trial court’s decision that the father was obligated to pay a portion of college expenses was affirmed.

Our Courts have set the factors to be considered when determining a parent’s obligation for college expenses. These are: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or the course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the ability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

 

Each of these factors are important and none are necessarily more significant than others. Rather, it is the entire picture that must be looked at when assessing expenses. Each set of facts are different. Yet, I believe that it is important for divorced parents to be aware of these factors as they begin the college selection process with their children and former spouses. It can make a significant difference in the ultimate resolution of expenses if you wind up in Court.
 

 

EDITOR'S NOTE:  While the relationship is one of the factors to be considered and there are cases that discuss it at length, more often than not, court's will go out of their way to find an obligation to pay for college in New Jersey. 

New Jersey is in the minority of states at this point that requires parents of divorced children (but not intact families) to pay for college for their children.  in many states, this has been raised as a constitutional issue.  The constitutional argued was raised in the New Jersey Supreme Court case of Gac v. Gac but the Supreme Court failed to decide the issue, as it was able to decide the issue on other grounds.  I suspect that one day, the direct constitutional argument, i.e. why are children of divorce treated differently than children of intact families, will be brought again to the Supreme Court to decide this thorny issue.   ERIC S. SOLOTOFF
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